Citation Nr: 0336841
Decision Date: 12/31/03 Archive Date: 01/07/04
DOCKET NO. 02-22 096 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUES
1. Entitlement to service connection for a psychiatric
disorder.
2. Entitlement to service connection for hypertension.
3. Entitlement to service connection for coronary artery
disease secondary to hypertension.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Phillip L. Krejci
INTRODUCTION
The veteran had active service from December 1972 to November
1976.
This case comes to the Board of Veterans' Appeals (Board)
from an August 2002 decision by the Pittsburgh, Pennsylvania,
Regional Office (RO).
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. Consistent with the
instructions below VA will notify you of the further action
required on your part.
REMAND
Service connection is granted when evidence shows that
disability resulted from injury or disease incurred or
aggravated in active military service. 38 U.S.C.A. §§ 1110,
1131 (West 2002); 38 C.F.R. § 3.303 (2003). To establish
service connection, there must be evidence of an etiologic
relationship between a current disability and events in
service or an injury or disease incurred there. Rabideau v.
Derwinski, 2 Vet. App. 141, 143 (1992). The requisite link
between a current disability and military service may be
established, in the absence of medical evidence that does so,
by medical evidence that the appellant incurred a chronic
disorder in service and currently has the same chronic
disorder, or by medical evidence that links a current
disability to symptoms that began in service and continued to
the present. Savage v. Gober, 10 Vet. App. 488, 498 (1997);
38 C.F.R. § 3.303(b). In addition, service connection is
warranted for disability proximately caused by other service-
connected disability. 38 C.F.R. § 3.310 (2003).
The veteran claims entitlement to service connection for a
psychiatric disorder, and the evidence of record, including a
June 1993 letter from the Indiana County Guidance Center,
shows that his earliest contact with mental health
professionals was court-ordered psychiatric treatment in
1986. The diagnoses then were adjustment disorder with
anxious mood and antisocial personality disorder. In 1990,
the diagnoses were major depression, single episode, and
personality disorder, not otherwise specified. Of course,
personality disorders, like congenital and developmental
defects, are not diseases or injuries, within the meaning of
VA law, and are not subject to service connection. 38 C.F.R.
§§ 3.303(c), 4.9 (2003). It is not clear, however, that all
relevant postservice treatment records have been obtained.
The veteran's service medical records show numerous somatic
complaints but little evidence of pathology. The impression
in June 1974 was adjustment reaction. In April 1976, the
veteran was noted to have a nervous syndrome, and Valium was
prescribed. The impression was nervous symptoms in a May
1976 record where the complaint was headaches. Notably,
however, a November 1976 separation examination clinically
evaluated the appellant as psychiatrically normal. It is not
clear, however, whether these records reflect psychiatric,
personality, or physiologic disorders. Thus, psychological
testing and evaluation and a psychiatric examination are
needed to determine whether there is a link between his
military service to include these in-service findings and
current psychiatric disorders.
The veteran also claims entitlement to service connection for
hypertension and to service connection for coronary artery
disease secondary to hypertension. The medical evidence of
record shows that he has hypertension and coronary artery
disease, but there is no medical evidence linking the two,
and there is no medical evidence linking either to his
military service. His service medical records show no
evidence of coronary artery disease, so service connection
for that is warranted only on a secondary basis. Clearly, if
the veteran is not entitled to service connection for
hypertension, neither is he entitled to service connection
for coronary artery disease.
With regard to hypertension, service medical records do show
complaints of high blood pressure in December 1972, but do
not reflect diagnoses or treatment of hypertension. Again,
however, it is not clear that all relevant postservice
treatment records have been obtained. After they are
obtained the veteran should be afforded a cardiac examination
to determine whether there is a link between his military
service and current cardiovascular disorders.
In October 1995, the veteran claimed VA pension benefits and
indicated that he was then receiving benefits from the Social
Security Administration (SSA). The RO had requested SSA
records in July 1995, but there is no SSA award notice in the
file, so it is not clear that all of the SSA records have
been associated with the file. See Murincsak v. Derwinski, 2
Vet. App. 363 (1992). Another inquiry must be made of the
SSA to ensure that all relevant records are obtained.
38 U.S.C.A. § 5103A(b)(3) (Efforts to secure Federal Records
must continue until further efforts would be futile.)
Finally, the Veterans Claims Assistance Act of 2000 (VCAA)
prescribes VA duties to notify the claimant of the evidence
needed to substantiate a claim, of the evidence VA will
obtain, and of the claimant's responsibilities with regard to
obtaining evidence. It also prescribes VA duties to help a
claimant obtain relevant evidence. See Quartuccio v.
Principi, 16 Vet. App. 13 (2002); Charles v. Principi, 16
Vet. App. 370 (2002). The VCAA is codified at 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). VA
duties pursuant thereto are codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326 (2003). However, a provision in one
of the regulations, 38 C.F.R. § 3.159(b)(1), was recently
invalidated due to a conflict between it and 38 U.S.C.A.
§ 5103(b). See Paralyzed Veterans of Am. v. Sec'y. of
Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003). This
remand will enable VA to ensure that the veteran has been
properly notified pursuant to VCAA.
Accordingly, this case is remanded to the RO for the
following:
1. The RO must advise the veteran:
a. That evidence needed to
substantiate his claim for
entitlement to service connection
for a psychiatric disorder is
medical evidence that he currently
has a psychiatric disorder-other
than a personality disorder-and
medical evidence that a current
psychiatric disorder was incurred in
service.
b. That the evidence needed to
substantiate his claim for
entitlement to service connection
for hypertension is medical evidence
that hypertension was incurred in
service, or medical evidence that
within one year of his separation
from active duty hypertension either
required continuous medication for
control, or that diastolic pressure
was predominately 100 or more, or
that systolic pressure was
predominately 160 or more.
c. That the evidence needed to
substantiate his claim for
entitlement to service connection
for coronary artery disease due to
hypertension is medical evidence
that hypertension was incurred in
service and medical evidence that
hypertension caused coronary artery
disease.
d. That it is his responsibility,
and his alone, to provide the
foregoing evidence, but VA will make
reasonable efforts to obtain
relevant evidence, such as VA and
non-VA medical records, employment
records, or records from government
agencies, if he identifies the
custodians thereof. VA will notify
him of evidence he identified that
could not be obtained so that he may
obtain the evidence himself and
submit it.
e. That he has one year to submit
the evidence needed to substantiate
his claim, or to identify for VA the
custodians of such evidence so that
VA may attempt to obtain it. His
appeal will remain in abeyance for
one year or until he indicates in
writing that there is no additional
evidence he wishes to have
considered, and he waives in writing
any time limitation set forth at
38 U.S.C.A. § 5103.
2. The veteran must identify all VA and
non-VA health care providers who have
examined or treated him for mental
disorders, hypertension, and coronary
artery disease, and the RO must attempt
to obtain examination and treatment
records from health care providers he
identifies. Specifically, the RO must
attempt to obtain records from the
Indiana County Guidance Center dated
since 1986.
3. The RO must obtain evidence from the
SSA of an award of benefits, and the
medical evidence relied upon to grant the
award.
4. Upon completion of the development
prescribed above, the veteran must be
afforded VA psychological testing and
evaluation to determination the nature of
all his mental disorders. The claims
file must be sent to the examiner for
review.
a. The examiner must carefully
review this remand, all service
medical records-particularly those
that refer to "adjustment
reaction" and a nervous syndrome-
and postservice treatment records.
The evaluation report must reflect
that review.
b. Testing should include the
Minnesota Multiphasic Personality
Inventory, second edition. If
scores are elevated on any scales,
rather than attributing that result
to possibilities, such as a "cry
for help" or prevarication, the
examiner should render an opinion,
based on sound medical judgment,
experience, knowledge of the facts
of the case, and interview of the
veteran, as to the actual cause of
the elevated scores.
c. If testing and evaluation
results in Axis I diagnoses, the
examiner must determine whether,
based on the veteran's service
medical records, it is at least as
likely as not that a disorder
diagnosed on Axis I was incurred in
service.
d. Axis II diagnoses must not be
deferred. If testing and evaluation
results in diagnoses on both Axis I
and Axis II, the examiner must
distinguish symptoms attributable to
each diagnosis.
5. After associating with the file the
report of the psychological evaluation
prescribed above, the veteran must be
afforded a VA psychiatric examination to
determine the nature of all his mental
disorders. The claims file must be sent
to the examiner for review.
a. The examiner must carefully
review this remand, service medical
records-particularly those that
refer to "nervous reaction"-and
postservice treatment records, and
the examination report must reflect
that review.
b. If the examination results in
Axis I diagnoses, the examiner must
determine whether, based on the
veteran's service medical records it
is at least as likely as not that a
disorder diagnosed on Axis I was
incurred in service.
c. Axis II diagnoses must not be
deferred. If testing and evaluation
results in diagnoses on both Axis I
and Axis II, the examiner must
distinguish symptoms attributable to
each diagnosis.
6. Upon completion of the development
prescribed above, the veteran must be
afforded a VA cardiac examination to
determination the nature of all his
cardiac disorders. The claim file must
be sent to the examiner for review.
a. The examiner must carefully
review this decision, service
medical records, and postservice
treatment records, particularly the
report of an April 1989 stress test,
and the evaluation report must
reflect that review.
b. The examiner must determine
whether, based on the veteran's
service medical records,
hypertension was incurred in
service. If the determination is
that hypertension was incurred in
service, then the examiner must
determine whether the veteran has
coronary artery disease and, if he
does, whether it was caused or
aggravated by hypertension.
7. Upon completion of the foregoing
development, and compliance with the time
constraints prescribed above in paragraph
1(e), the RO must review all the evidence
of record and, if the benefits sought on
appeal remain denied, issue a
Supplemental Statement of the Case in
accord with 38 C.F.R. §§ 19.31, 19.38
(2003).
The veteran has the right to submit additional evidence and
argument on the matter herein remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
____________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court of Appeals for Veterans
Claims. This remand is in the nature of a preliminary order
and does not constitute a decision of the Board on the merits
of your appeal. 38 C.F.R. § 20.1100(b) (2003).